imagesBefore the expiration of the extended deadline last week, the U.S. Equal Employment Opportunity Commission received over 100 comments to its proposed Enforcement Guidance (“Proposed Guidance”) on workplace harassment. The revised guidance is the first revision to the EEOC’s workplace harassment guidance since the 1990s and the result of the July 2016 report by the EEOC’s Select Task Force, which notes that “During the course of fiscal year 2015, EEOC received approximately 28,000 charges alleging harassment from employees … This is almost a full third of the approximately 90,000 charges of employment discrimination the EEOC received that year.” See report here.

In addition to other aspects of the Proposed Guidance, certain commentators such as The Employment Law Alliance (“ELA”), the U.S. Chamber of Commerce (“The Chamber”), and The Society for Human Resources Management (“SHRM”) were particularly critical of the EEOC’s position on sexual orientation bias and harassment as inconsistent with existing law and outside the scope of the legislative intent of the statute.

The Proposed Guidance confirms the EEOC’s position that harassment based on gender identity and sexual orientation is prohibited under Title VII, and defines the two terms as follows:

Gender identity: Sex-based harassment includes harassment based on gender identity. This includes harassment based on an individuals’ transgender status or the individual’s intent to transition. It also includes using a name or pronoun inconsistent with the individuals’ gender identity in a persistent or offensive manner.

Sexual orientation: Sex-based harassment includes harassment because an individual is lesbian, gay, bisexual, or heterosexual.

Each of these definitions is accompanied in the Proposed Guidance by a footnote. As The Chamber noted in its comment, however, the single case referenced by the EEOC in its gender identity footnote is a case issued by the EEOC itself, not a Court. The EEOC’s footnote to its sexual orientation definition also highlights one of its own cases and contains an arguably one-sided and misleading representation of support for its own position.  As The Chamber notes, the Proposed Guidance fails to include several Court-issued rulings that explicitly reject the EEOC’s position. SHRM’s comment to the Proposed Guidance also expressed concern that the EEOC failed to clearly communicate in the body of the Proposed Guidance that its position is opposed to established law, as the EEOC did in other areas of the Proposed Guidance. The ELA similarly observed that the EEOC’s inclusion of “gender identity,” “transgender status,” an “individual’s intent to transition” and “sexual orientation” is beyond the plain language of Title VII and “reflects the commission’s impermissible trespassing into legislative rulemaking.”

While the EEOC has been similarly chastised by multiple other sources during the recent past for “legislating” and not regulating, the EEOC has continued to actively pursue its position on LBGT and gender identity issues and it is unlikely to take steps to substantially revise its position or the final Guidance.

Workplace AccommodationOn Monday, December 12, the Equal Employment Opportunity Commission (EEOC) issued a resource document concerning workplace rights for individuals with mental health conditions under the Americans with Disabilities Act (ADA), entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” This resource document is part of a series of resource documents issued by the EEOC explaining workplace rights for individuals with disabilities. Earlier in 2016 the EEOC released resource documents addressing the rights of employees with HIV infection and employees who are pregnant.

Through the document, the EEOC aims to educate employers, job applicants, and employees that mental health conditions are no different from physical health conditions under the ADA. Moreover, EEOC charge data shows that claims of workplace discrimination based on mental health conditions are on the rise, with preliminary 2016 data estimating 5,000 mental health discrimination charges within the fiscal year.

Individuals suffering from depression, PTSD, and other mental health conditions are protected from workplace discrimination based on their mental health condition. Thus, employers must be prudent not to rely on stereotypes or jump to conclusions regarding mental health. However, employers are not required to hire or keep employees in jobs they cannot perform or employ individuals who pose a “direct threat” to safety.

The document explains that generally employees with a mental health condition are able to keep their condition private in the workplace. Employers are permitted to ask questions about mental health in only four situations:

  • When an employee with a mental health condition asks for a reasonable accommodation.
  • After the employer has made a job offer, but before employment begins, if everyone entering the same job category is asked the same questions, and the questions are job-related in some way.
  • When the employer is engaging in affirmative action for people with disabilities, in which case the employee may choose whether to respond.
  • On the job, when there is objective evidence that the employee may be unable to perform the job or that an employee may pose a safety risk because of his or her condition.

Moreover, employees with mental health conditions have a right to reasonable accommodations at work. The document provides some examples of acceptable reasonable accommodations for employees with mental health conditions:

  • Altered break and work schedules to work around therapy appointments.
  • Quiet office space or devices that create a less stressful work environment.
  • Changes in supervisory methods, such as written instructions instead of oral.
  • Specific shift assignments.
  • Permission to work from home.

Employers are not required to provide a reasonable accommodation unless an employee requests one. However, if a reasonable accommodation will enable the employee to fulfill his or her job responsibilities, employers are advised by the EEOC to provide one, unless the accommodation involves significant difficulty or expense. Employers may also choose between reasonable accommodations if more than one accommodation is feasible.

Given the complex issues with mental health issues and accommodations for individuals suffering with them, employers should act prudently and engage in the interactive process with affected employees. Experienced employment lawyers can be of great help in this effort.

On October 28, 2016, the Supreme Court of the United States said that it would decide whether the Obama Administration’s interpretation of Title IX as requiring schools to allow students to utilize restrooms that correspond to their gender identities is proper. The case of Gloucester County School Board v. GG, involves the claims of a biologically female high school student, who identifies as a transgender boy, seeking access to the boys’ bathroom at school. While the school board initially allowed the student to use the boys’ bathroom, it later adopted a policy requiring students to use bathrooms that correspond to their biological sex or a separate single-stall restroom.

Although the Gloucester County case relates to students, the Supreme Court’s decision should also have a significant impact on employers. Recently, both the EEOC and OSHA have taken new positions with regard to LGBT rights, including restroom access. The EEOC has taken the position that Title VII’s prohibition of sex discrimination protects lesbian, gay, bisexual and transgender applicants and employees against employment bias. The EEOC has aggressively enforced its new position. Recently, the EEOC announced that it had entered into a settlement with a West Virginia hospital requiring the hospital to make same-sex spouses eligible for employer-sponsored benefits. Similarly, both the EEOC and OSHA have issued guidance indicating that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.

Presumably, the Supreme Court’s decision in the Gloucester County case will provide clarity as to whether the courts will show deference to these agencies’ interpretations of the law. Employers seeking guidance regarding LGBT issues in their own workplace should contact any of the attorneys in the Frantz Ward Labor and Employment Practice Group.

Workplace-RetaliationEarlier this year, we reviewed the Equal Employment Opportunity Commission’s (“EEOC”) proposed enforcement guidelines regarding retaliation claims. After a 30-day comment period and input from approximately 60 individuals and organizations, on August 25, 2016, the EEOC released the final version of the Enforcement Guidance on Retaliation and Related Issues (“Guidance”). The Guidance comes nearly 20 years after the release of the EEOC’s last guidance on retaliation, during which time the Courts and the EEOC have released significant decisions on the topic of protected workplace activity.

The EEOC protects individuals from retaliation by their employer when they “participate” in an EEO process or “oppose” discrimination. While “participation” is narrowly defined as filing a charge; or testifying, assisting, or participating in an investigation, proceeding, or hearing, it is broadly protected and does not require the individual to have acted in good faith.

The new regulations also attempt to delineate what constitutes “opposition” activity. Opposition activity is broadly defined as any activity by an individual in opposition to discrimination. Unlike the participate clause, however, the opposition clause is narrowly applied to those having a good faith belief that there has been a violation of the law and those who act reasonably in opposition.

The Guidance gives “protected activity” an expansive meaning and, not surprisingly, defers to the EEOC to interpret what conduct is protected. The Guidance lists a number of activities that are considered to be protected under the opposition clause:

  • Complaining to management about discrimination against oneself or coworkers;
  • Accompanying a coworker to the human resources office to file an internal EEO complaint;
  • Taking a stand against an employer’s discriminatory practices by refusing to take action (e.g., refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons);
  • Answering an employer’s questions about a discrimination complaint initiated by another employee; or
  • Explicitly or implicitly communicating a belief that some workplace condition is or could become harassment or discrimination.

Employers should be aware that the opposition does not need to be in any particular form or specifically use words such as “harassment” or “discrimination.” An employee who files a broad complaint of “unfair” treatment in the workplace may be protected if the circumstances indicate that unfair treatment may include some discrimination based on a protected status. In addition, while the employee must have a good faith belief that discrimination has occurred, the new regulations make clear that the employee does not have to prove the underlying claim of wrongdoing to be successful in his or her retaliation claim.

Taking a cue from recent Supreme Court cases, the Guidance also broadens the definition of “adverse action” to include anything that could be reasonably likely to deter protected activity — even if it has no tangible effect on the individual’s employment. Adverse action can be non‑work-related, occur outside of work, and can be associational (e.g., taken against a third‑party who is closely linked to a complaining employee). This is different from the adverse action needed to sustain a claim of discrimination, which must be substantial and work‑related (e.g., suspension, termination).

Retaliation claims continue to be the most frequently filed claims with the EEOC – almost 45% of charges filed yearly allege workplace retaliation. In light of this new Guidance as well as the EEOC’s recent efforts to expand the number of protected categories, employers can expect these numbers to rise. Employers should continue to update employee handbooks and provide training to ensure that employees, especially those in supervisory roles, are aware of what may constitute workplace retaliation.

On August 10, 2016, the Securities and Exchange Commission issued a cease and desist order against BlueLinx Holdings, Inc. that further demonstrates the scrutiny of various federal agencies with respect to severance agreements.

In BlueLinx, the SEC found a provision in a severance agreement that restricted employees from providing information to the SEC without company approval. This finding had a chilling effect on employees reporting suspected fraudulent activity. Such “whistleblowing” is specifically permitted and encouraged under the Dodd-Frank Act, which even offers financial incentives to employees to do so. While the severance agreement in issue did allow severed employees to file a charge with the SEC, it did not allow them to provide information to the SEC without company approval.

The SEC fined BlueLinx $265,000, and also ordered the company to modify its severance agreements to add language that advised employees they were not limited in their ability to file a charge or complaint with the SEC. The SEC did not stop there, however, as it also stated that BlueLinx must advise employees they were not limited in their ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, or any other federal, state or local agency or commission. Additionally, the SEC stated that the severance agreements must inform employees that they were not limited in their ability to communicate with any governmental agency, nor from participating in an investigation or action by such agencies, or from receiving any monies for providing information (i.e., the Dodd-Frank whistleblowing reward).

This last provision is particularly troubling, as the nature of the release is that the employee gives up a claim for potential future monetary recovery in exchange for a current payment. Almost every current, well-drafted release informs an employee that, although he or she may provide information for and assist in government investigations, there is no longer any right to share in monetary recoveries.

This decision parallels some recent decisions and guidance from the U.S. Equal Employment Opportunity Commission and the National Labor Relations Board wherein the agencies have scrutinized severance agreements and found certain language to have a chilling effect on the exercise of statutory rights, and it highlights the need for employers to review carefully the language that is included in severance and separation agreements.

maxresdefaultAlthough the Republican National Convention is now behind us in Cleveland, we still have several months of campaigning to endure prior to the presidential election. During this time of year, the issue of expressing political beliefs in the workplace is especially poignant.

In the midst of all of this political activity, employers may ask—how much political activity must I allow or tolerate in the workplace? When regulating employees’ political speech and expression in the workplace, there are several laws that private-sector employers need to remember.

U.S. Constitution:  Contrary to popular belief, the First Amendment does not permit free speech everywhere. In fact, it protects only against attempts by the government to limit speech and expression. Although private-sector employers cannot violate the First Amendment by restricting political speech or expression in the workplace, they can run afoul of other laws.

National Labor Relations Act:  Under the NLRA, employees may engage in concerted, protected activity, which includes discussions related to employees’ mutual aid and protection, and terms and conditions of employment. Sometimes, discussions on these topics can spill over into political speech. For example, employers generally must permit employees to wear and display buttons or other insignia that may be political in nature but also include union messages. Also, employers cannot penalize employees for advocating for political issue campaigns (e.g., opposing right to work legislation), as long as the advocacy and any solicitation takes place in non-working areas during non-working time.

Equal Employment Opportunity Laws:  Some workplace political discussions will necessarily touch on sensitive subjects related to certain protected characteristics, such as gender, ethnicity, national origin, race, and religion. If employers permit political speech or expression in the workplace, then they must be careful that these activities do not imply that they condone or sponsor discrimination or harassment.

Given the numerous problems that political speech and expression can cause for employers, the most prudent course of action is to consider establishing reasonable restrictions on employees’ participation in these types of activities within the workplace.

In a future posting, we will address legal issues surrounding political activity in the workplace that is initiated by employers (as compared to employee-initiated activity, which is addressed here).

On July 13, 2016, the United States Equal Employment Opportunity Commission (“EEOC”) released a proposed revised Employer Information Report (EEO-1) (“Proposed Revision”). This slightly changes the original EEOC proposal to add compensation and hours worked data to the EEO-1 Report. An example of the proposed EEO-1 report can be found here. The EEOC has always required employers with more than 100 employees (more than 50 employees for federal contractors) to file EEO-1 Reports yearly identifying employees into 15 categories of race/ethnicity and sex and 10 job categories. Employers will now have to include employee hours worked and employee compensation information by pay band, utilizing the same twelve bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey:

$19,239 and under;
$19,240 – $24,439;
$24,440 – $30,679;
$30,680 – $38,999;
$39,000 – $49,919;
$49,920 – $62,919;
$62,920 – $80,079;
$80,080 – $101,919;
$101,920 – $128,959;
$128,960 – $163,799;
$163,800 – $207,999; and
$208,000 and over.

Compared to the original proposal, the Proposed Revision changes the due date for the “new style” EEO-1 reports from September 30, 2017, to March 31, 2018, to allow employers to utilize calendar year W-2 pay reports. Hours for salaried employees will have to be reported, either by using actual hours worked, if tracked, or by assuming a 40-hour work week.

The Proposed Revision comes after an initial comment period from February 1, 2016, to April 1, 2016. In drafting the Proposed Revision, the EEOC considered oral and written comments from employers, individuals, trade groups, civil rights organizations, and labor unions. The Proposed Revision will only become final after another 30-day comment period. Individuals have until August 15, 2016, to submit written comments to the United States Office of Management and Budget for consideration. Written comments may be submitted to: Joseph B. Nye, Policy Analyst, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC, 20503, e-mail oira_submission@omb.eop.gov. More information can be found in the Federal eRulemaking Portal here.

Many employers have turned to employee wellness programs to curtail rising health care costs and improve productivity. These wellness programs typically involve health screenings and/or services to aid in reducing health risks (e.g. tobacco use, blood pressure), often coupled with financial incentives for the employee’s participation.

Over the past few years, the Equal Employment Opportunity Commission (EEOC) has taken aim at wellness programs and brought a number of lawsuits challenging their legality under discrimination laws such as the Americans with Disabilities Act of 1990 (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA), suffering a string of defeats (click here and here) in the process. Last month, the EEOC issued final rules addressing the interaction between wellness programs and the ADA and GINA, and explaining how employers can comply with these laws. The final rules have been met with criticism by many who believe that the rules are inconsistent with the provisions supporting broader use of wellness plans and incentives contained in the Affordable Care Act (ACA). Still, these rules, found here and here become effective in January 2017.

The final rules require, among other things, that employers provide an annual notice to employees, informing them “what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential.” Employers with wellness programs must provide this notice to employees by the first day of the plan year beginning on or after January 1, 2017. It is important that employers either incorporate the required notice information into those already used (such as for HIPAA) or provide a separate notice with this information, otherwise their wellness programs will not be deemed voluntary. On June 16, 2016, the EEOC released a sample notice for employers to use in connection with wellness programs.